Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Recent Ruling in Obstruction of Justice Case Against Former Penn State Officials Provides a Stark Reminder Of General Counsel’s Upjohn Duties

Former Penn State president Graham Spanier, former vice-president Gary Schultz and ex-athletic director Tim Curley are facing prosecution for allegedly participating in a cover-up related to the infamous prosecution of former Penn State assistant football coach Jerry Sandusky who is currently serving a prison term for child molestation.

The defendants sought dismissal of the indictments or, in the alternative, suppression of the officials’ grand jury testimony, claiming they believed they were being represented by Penn State’s general counsel during grand jury proceedings and the general counsel violated their attorney client privilege when the latter testified to discussions with them. (See,%202015%20-%20Memorandum%20Opinion%20and%20Order%20on%20Curley,%20Schultz%20and%20Spanier.pdf) Indeed, the general counsel was present when the three officials testified before the grand jury that they were unaware of the allegations against Sandusky—statements that form the core of the perjury charges against them. 

The trial court denied the defendants’ requested relief finding that “in all matters related to their appearances before the grand jury, including preparation for such appearances, [Penn State General Counsel] represented each Defendant in his capacity as an agent of the University conducting University business, not in an individual, personal capacity.”   Thus, Penn State “as the holder of the privilege, waived its attorney client privilege,” and therefore “no violations of the attorney-client privilege occurred” when the general counsel testified to discussions with the defendants.   

Although these officials will not avoid prosecution, the order is a reminder to corporate counsel in all jurisdictions of the importance of advising corporate employees of who the client is.   Upjohn warnings are named after Upjohn v. United States (1981) 449 U.S. 383 which, itself, does not reach the issue of warnings, but confirmed that communications between corporate counsel and corporate employees were potentially privileged. Out of the Upjohn decision, issues arose as to who held the privilege (the corporation, the corporate employee, or both) and who could waive the privilege associated with such communications. 

California Rules of Professional Conduct, Rule 3-600(A), provides that in representing entities "an attorney must conform the representation to the concept that the organization itself is the client, acting through its highest authorized officer, employee, body, or constituent overseeing the particular engagement.”  Thus, while corporate counsel’s discussion with an employee may be privileged, an Upjohn warning will advise the employee of who the client is-the corporation-and who the client is not-the employee.  

Upjohn warnings thus confirm to the employee that the discussion may not be privileged if the corporation chooses to waive the privilege.   Similar to a Miranda warning, Upjohn warnings can also be used to allow the employee to determine if they need their own counsel.  The warning is also significant to ensure the employee understands the corporation is the holder of the privilege and that, upon the corporations assertion, the discussion should not be disclosed.   

-- Andrew Servais

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**